If you’re following the current story on the John Yoo and Judge Jay Bybee torture memos you know the Office of Professional Responsibility report found the memos shameful, but Associate Deputy Attorney General David Margolis has recommended the Justice Department will not refer a finding of professional misconduct. With this announcement many talking heads on the right, often ex-officials of the Bush 43 administration, have gone on the attack claiming all this news totally exonerates Yoo and Bybee. Not so. Margolis basically says their legal advice was very questionable and essentially straddles the line of misconduct enough he can’t rule against them.

One thing the OPR report does illuminate is simply how shameful and shameless the United States government, particularly the executive branch and Department of Justice, behaved during the Bush years. These individuals may escape personal and professional repercussions, but history will not be kind to anyone who is associated with dragging America down into the ranks of states that torture.

Instead, Margolis argues that, judging by (among other things) a review of D.C. bar rules, the standard for attorney misconduct is set pretty damn low, and is only violated by lawyers who (here I put it colloquially) are the scum of the earth. Lawyers barely above the scum of the earth are therefore excused.

And here’s Balkin’s excellent concluding graf:

Whether or not the DOJ refers Yoo and Bybee for professional discipline, no one should think that either man behaved according to the high standards we should expect of government attorneys. They, and the government officials who worked with them, shamed this nation. They dragged America’s reputation in the dirt. They severely damaged our good name in the eyes of the world. They undermined the values this country stands for and that the legal profession should stand for. Nothing the DOJ does now–or fails to do–will change that.

That line that Bush 43 officials might not want to travel overseas? It’s becoming reality. At some point the highest levels of U.S. jurisprudence will have to look into the fact of Bush administration war crimes.

From the link:

Spain’s national newspapers, El País and Público reported that the Spanish national security court has opened a criminal probe focusing on Bush Administration lawyers who pioneered the descent into torture at the prison in Guantánamo. The criminal complaint can be examined here. Públicoidentifies the targets as University of California law professor John Yoo, former Department of Defense general counsel William J. Haynes II (now a lawyer working for Chevron), former vice presidential chief-of-staff David Addington, former attorney general and White House counsel Alberto Gonzales, former Assistant Attorney General Jay Bybee, now a judge of the United States Court of Appeals for the Ninth Circuit, and former Undersecretary of Defense Doug Feith.

The case was opened in the Spanish national security court, the Audencia Nacional. In July 2006, the Spanish Supreme Court overturned the conviction of a former Spanish citizen who had been held in Guantánamo, labeling the regime established in Guantánamo a “legal black hole.” The court forbade Spanish cooperation with U.S. authorities in connection with the Guantánamo facility. The current criminal case evolved out of an investigation into allegations, sustained by Spain’s Supreme Court, that the Spanish citizen had been tortured in Guantánamo.

More ominous for Yoo and Addington et al is that the judge involved is the one who nailed Pinochet. That dude doesn’t mess around. Spain’s action means these war criminals are vulnerable in 24 European countries for arrest and prosecution for enabling torture. It’s a start.

Danny sez, “Following on from the memo allowing torture overseas, Kurt Opsahl from EFF has spotted a footnoted reference to a memo from the Administration that says ‘our Office recently concluded that the Fourth Amendment had no application to domestic military operations.’ So, if you’re abroad and deemed an enemy combatant you can be tortured. If you’re in the US, and you’re caught up in a “military operation”, you lose the bill of rights. Where exactly is the constitution supposed to apply?” Link (Thanks, Danny!)